Do You Have A Lawsuit Based On Calls To Your Cell Phone Or Residential Land Line?

Interviewer: I am sure some people reading this will ask, “Do I have a claim or not?” How do you determine if someone has a valid claim?

Andrew Campbell: I primarily deal with violations to cell phones because that is the easiest type of violation to prove.

The first question you have to ask is: Did I provide prior express consent to the company call mey cell phone.

When I say prior express consent I mean for example, did you provide that particular cell phone number on the application for credit?  If you did, you gave them permission.

You can always reverse that decision (revoke consent) by deciding to opt out if you write a letter and send it certified mail; and then get the green card return receipt. You can also simply tell them verbally to “stop calling me” everytime they call. That is also revoking consent. It is best to write down the date and time you told them this as you will need that proof later on.

If you do write a letter to them, say. “Stop calling my cell phone number xxx-xxx-xxxx.”

Interviewer: Can they try to snake their way out and say they are using live representatives?

Andrew Campbell: They can always argue that they are not using an auto dialer. Recently the 1st Circuit Court made a decision that had a huge impact on this area of law.

  • First, if you do provide your cell phone number on an application for credit you are giving limited permission for that company or their collector to call you using an autodialer or prerecorded message.

But that doesn’t mean they can necessarily call you for any reason. It has to be closely related to the purpose for which the number was provided. So if they are calling you trying to sell you a completely different product that has nothing to do with the account you opened, that could violate the law.

  • If you are part of a business or family calling plan, then consent to call can be given by a customary user including within that plan.
  • Text messages are considered calls under the law so text messages are regulated as well.
  • Non-emergency informational calls, including calls by non-profits, can be made to cell phones only with the called party’s consent.
  • If you gave consent for someone to call your landline that consent will still apply if you port your number (transfer it) to a cell phone. So if you do port your number and don’t want more calls, make sure you revoke consent by any reasonable means (calling, texting, sending email or writing a letter).
  • The caller has the burden to prove consent. This means that the caller has to keep business records that demonstrate consent was provided.
  •  Just because a friend of yours is on your contact list doesn’t mean a company can call your friend too. Consent cannot be implied because of that fact.

But the definition of an auto dialer is as follows: equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator; and to dial such numbers.

To simplify, it is really equipment that has the CAPACITY to dial numbers without human intervention.  The key word there is capacity.

The reason they framed it that way was they did not want a company to be able to just flip a switch to go from auto dialer to non-auto dialer. Then, the company could say, “We had the switch the other way.  It was not an auto dialed call.” Then it is too easy to simply flip the switch to not show liability.

So the law just said, “Look, if that machine has the capacity to do it then it is illegal.”

In fact, there is something interesting to note here. If you paid attention to the last presidential election of 2012, you may have noticed that there was a divergence in the polls.  Some polls were showing that one candidate was doing particularly well and the other candidate was not. Polls were incorrect because they did not poll cell phone users.

Why didn’t they poll cell phone users?  Because the pollsters were all equipped with automated telephone dialing equipment and they did not want to violate the TCPA.

Really, it came down to laziness because all they had to do was pick up the phone to call and punch in numbers with their fingers.  Polling companies did not want to do that so they simply made a good guess by calling just a few people.

Calling manually is just a phone call, it is not prohibited.  That is perfectly acceptable for a collection agency to do, with or without your permission. The problem comes when you get equipment that has the capacity to dial without human intervention.

If the polling companies had simply manually dialed the calls and properly sampled cell phone users, they would have seen a different set of data coming out.

Interviewer: So the trouble does not come with one phone call, obviously.  Calls have to be repeated, correct?

Andrew Campbell: Well there is a big difference between calls to landlines and calls to cell phones. All calls to cell phones are regulated. If the call is to a landline there has to be more than one call to have a violation.

The first call is a “gimme.”  You get a call from a telemarketer on your land line, and you answer it and it is a prerecorded call.  You wait until they get on and say, “Do not call me anymore, okay?  Just put me on your do not call list.” Then you hang up.

If they call you back again with a prerecorded message, that is a violation.  Now you have two violations.  You cannot take action until the second call. Only upon the second call is the first considered a violation.

Interviewer: How many people take action though on one or two calls? Is that pretty rare?

Andrew Campbell: It is very rare. Nobody knows about this law and that is the first problem.  I typically will help anyone out who I can help. However, I typically do not want to take cases unless there has been at least five or six calls. That is just because the damages might be too small to economically pursue. The real problem is that most people just do not know their rights.